California Court of Appeals Finds Advisory Circulars Fail to Create Supremacy Clause Preemption

by Morrison & Foerster LLP
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On March 20, 2012, the California Court of Appeal Second District held that nonmandatory safety standards issued by the FAA in Advisory Circulars do not preempt state tort law on the standard of care. Sierra Pacific Holdings, Inc. v. County of Ventura, 2d Civil No. B232307 (slip op.) (Cal. App. 2 Dist. Mar. 20, 2012). The court found that FAA Advisory Circulars are just that—advisory—and such nonmandatory federal standards are not federal “law” creating Supremacy Clause preemption.

The case arises from a suit by an aircraft owner against an airport for negligently creating a dangerous condition at the airport that resulted in damage to its aircraft. The district court found that the standard of care was governed by Advisory Circulars issued by the FAA. Because the allegedly dangerous condition created by a runway safe zone was in accordance with FAA-issued Advisory Circulars, the aircraft owner’s negligence claim failed as a matter of law.

The California Court of Appeals reversed, analyzing the reasoning of the Second, Third, Sixth, and Tenth Circuits of the federal courts of appeal that state tort law on the standard of care is impliedly preempted by FAA standards because Congress intended to occupy the entire field of aviation safety through the Federal Aviation Act of 1958. See Goodspeed Airport LLC v. East Haddam Inland Wetlands & Watercourses Com’n, 634 F.3d 206 (2nd Cir. 2011); US Airways, Inc. v. O’Donnell, 627 F.3d 1318 (10th Cir. 2010); Green v. B.F. Goodrich Avionics Systems, Inc., 409 F.3d 784 (6th Cir. 2005); Abdullah v. American Airlines, Inc., 181 F.3d 363 (3rd Cir. 1999). The court admitted that because the Advisory Circular at issue implicates the field of aviation safety, it arguably would be preempted under the reasoning of these federal circuits.

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